Deputy Drama – An analysis of RE A, C and D
Adrian Hawley, Head of Court of Protection
Our Adrian Hawley head of Court of Protection looks at the case of A, Re [2016] EWCOP 3 (12 January 2016) where it was found that the appointment of a professional deputy was preferential to the appointment of a relative by the Court where relatives can increase the costs of dealing with general management.
This was one of the last cases heard by Senior Judge Lush. He was appointed master of the Court of Protection on 24 April 1996 and became the Senior of the Court of Protection when the Mental Capacity Act 2005 came into force on 1 October 2007. He retired from the Court of Protection on 19 July 2016.
The graphic sets out the background and family make up in the case.
Senior Judge Lush did remark that he suspected “A” was possibly the only person still alive who was the subject of the lunacy inquisition, such inquisitions became obsolete when the Mental Health Act of 1959 came into force (thereby dispensing with the Lunacy Act 1890).
An order made in 2013 following hearings made “C” (the niece of “A”) the deputy for property and affairs. As “D” the nephew of “A” had opposed the application to appoint “C” Senior Judge Lush ordered him to pay the costs of the proceedings, save for £7,500 plus VAT which was the estimate of the costs had the application been unopposed.
“D” then made an application to appeal the order and the President of the Court of Protection listed the matter for 19 December 2013. A new GP for “A” opined just before the hearing that she had capacity to manage her property and affairs. It was then ordered that Professor Robert Howard report to the court on the capacity of “A” to manage her property and affairs.
The President made a declaration at the hearing on 20 January 2015 that “A” lacked capacity to manage her property and affairs at the time of the hearing on 15 May 2013 and disposed of the judicial grounds of the application. The costs ground would be heard in March 2016.
In the meantime, “C” wished to step down as deputy and made an application to appoint a solicitor deputy from a London practice. An application was also made to appoint the proposed deputy as a trustee as well as herself. In August 2015 the President directed that the applications for the appointment of new deputy and trustee be listed before Senior Judge Lush. The hearing was then listed for 3 December 2015.
At the hearing “D” appeared as a litigant in person and sought to adjourn the hearing due to four reasons; not agreeing the trial bundle content, being served a further witness statement, an application for committal and the filing of a position statement by the applicant five minutes before a deadline; the reasons were rejected in best interests of “A”.
Both parties made submissions to the court
| Applicant C | Respondent D | |||
| 1 | The proposed deputy was an “OPG” Panel Deputy as the time of the application | 1 | The Deputy is based in London and “A” lives in Yorkshire | |
| 2 | The proposed deputy did not seek re-selection but another partner remains a Panel Deputy in the same firm | 2 | The fees charged by the proposed deputy would be at City of London rates | |
| 3 | The proposed deputy has the expertise to take on the role of a professional trustee | 3 | The proposed deputy is frequently abroad | |
| 4 | In the interest of reducing professional fees it is sensible for the deputy and trustee to be the same | 4 | Further information is sought about the assets of “A” suggesting she was deprived of land as a result of previous transactions |
Furthermore in the weeks leading to the hearing “D” contended that the proposed deputy was an expert in tax avoidance and she would be called to give evidence in the action brought against one of the solicitors acting in the past. In addition, “D” produced voluminous amounts of correspondence which were irrelevant, tiresome and repetitious.
The legal framework was then considered to include sections 1 to 4 of the Mental Capacity Act 2005. Section 16(2) provided that the court may appoint a deputy on P’s behalf. The reasons for choosing a relative or family member as opposed to a professional deputy falls to the costs of such an appointment.
The consideration of the charges made by a professional deputy as to whether they were excessive or not brought the case of Rodman; Long v Rodman and others [2012] EWHC 347 (Ch); [2012] COPLR 433 into the forefront. Senior Judge Lush considered the case as it involved a former Partner of the same proposed firm to act as Deputy. The case noted the fees charged were large but not excessive and, in any case, would be subject to annual detailed assessment.
The decision was to appoint the Partner from the London firm as there was no longer a family member wishing to act for “A” and the solicitor would also act as a Trustee.
This case shows that whilst a firm may charge what appears to be excessive fees they will always be subject to the assessment by the SCCO. When it comes to the appointment of a deputy the court has the last say and whilst this would always be preferable to have a family member there are professional deputies that will carry out the role within SCCO/OPG guidelines resulting in P’s interests best served.
Over the last few years we have built a dedicated Court of Protection Costs team at Partners in Costs specialising in Property and Affairs. We are happy to advise on those complicated matters as well as providing costing services for general management, applications for gifts, statutory wills and specific issues. With the introduction of budgeting in general management in Court of Protection matters we can offer training to help deputy’s through the OPG/SCCO guidelines. We also offer an in-house training session to help ensure fair remuneration is obtained for the work undertaken.
Click here if you would like to contact Adrian with any queries resulting from this article or if you would like to arrange a training session at your firm.
Adrian Hawley – Head of Court of Protection – Partners in Costs
23.11.2018